Opinion of the Court.

In Davies v. Miller, 130 U. S. 284, 287, 289, it was held that under the act of 1864 the protest could be made at any time after entry, it having been decided in the court below that it could not be made before final liquidation, but whether it could be made after payment was not a question presented for consideration; and Marriott v. Brune was referred to as generally regarded and acted on as laying down a general rule establishing the validity of prospective protests as it was in Schell's Executors v. Fauché, 138 U. S. 562. No point was ruled in these cases inconsistent with the conclusion at which we have arrived, which is that these protests were not in time. We think this results from the language of the statutes, the facts disclosed by the record and the decision in Barney v. Watson, in which the precise question was squarely presented.

It is true that the evidence of a custom-house broker was adduced to the effect that where there was any uncertainty as to the correct rate of duty it was the practice, at the time of the trial, to take from the merchant what was known as a deposit intended to more than cover the exact amount of duty; but we do not understand this practice, if it prevailed prior to the act of June 30, 1864, as dispensing with the necessity of the collector making his estimate of the duties by fixing in dollars and cents the amount which prima facie the importer should pay, exacting, if in doubt, the higher of two possible rates.

In this case the collector claimed thirty per cent ad valorem and two cents per square yard. The importer must be held to have known whether this classification was objectionable or not, and was not entitled to wait until final liquidation to make up his mind whether he would protest against that classification, and on what ground he would put the protest. In not protesting he accepted the rates as they stood and took the chances that they might be lowered, while if they were increased a protest would then be effective as to such increase, or if the basis of the exaction was changed. There was no increase and apparently no change. The reasonable inference is that the ground of the refund was some inaccuracy in the computations.

Opinion of the Court.

And it might well be held, on this record, that even if the money could be said to have been paid at the time of the final liquidation because not applied until then, it was not paid in order to get possession of the goods. See under subsequent statutes: United States v. Schlesinger, 120 U. S. 109; Porter v. Beard, 124 U. S. 429; Merritt v. Cameron, 137 U. S. 542; Cadwalader v. Partridge, 137 U. S. 553; Schoenfeld v. Hendricks, 152 U. S. 691.

66

2. Among the goods imported were certain plain bareges and grenadines, each composed of a silk warp and worsted weft. No samples of these imports, or any similar goods imported by Rickard, were put in evidence. A sample was shown to one of the witnesses, (and other similar evidence was adduced, not differing from that of this witness,) who testified that it "was known in this country in 1861 as a grenadine or a barege." This was objected to, because "in no way connected with any goods in suit," but was admitted as Exhibit 44, and defendant excepted. The witness was then shown another sample, as to which he testified that it "was a barege, but it might be called a grenadine sometimes." This was also admitted under exception and marked 44. The next sample was a grenadine, what they call an iron barege, or an iron frame barege; that the real name for it was, in French, canevas, because they resembled canvas; that when they came here they got the name of iron bareges; that it was not a species of grenadine; it was a grenadine, only it had a disposition of threads more or less heavy or harsh." This was likewise admitted, under exception, as Exhibit 45. The witness further testified that "Exhibit 44 did not differ at all from a plain barege, a silk and worsted barege as known in trade and commerce in 1861, '2, '3, and '4; it was simply a barege; that Exhibit 45 was a grenadine, and in 1862, '3, and '4 was known in trade and commerce in this country as an iron barege; that it did not differ in any respect from what was known in trade and commerce in this country in 1862, '3, and '4 as grenadine; that he did not know anything about the bareges in this suit; that there was a great variety of grenadines; that if a grenadine

Opinion of the Court.

were of a quality worth 65 cents it would not represent at all one that was worth $1.25; that he did not know

anything about the grenadines in this suit." The jury found for the plaintiffs as to the grenadines. There was no evidence adduced of the loss or destruction by Rickard of the samples, nor did the lapse of time raise any presumption of such loss or destruction. The protest for purposes of suit was made not long after the importations, and the action was commenced in 1866 by the same attorney who was spared to try the case nearly a quarter of a century afterwards. The goods were not perishable in nature and no reason was given why the necessary samples were not preserved. It must be assumed that all material testimony bearing upon these exhibits was incorporated in the bill of exceptions, and we cannot discover therefrom that the articles imported by Rickard under the name of grenadines were iron bareges or claimed by him to be such. Unless this were so, the sample numbered 45 was not relevant. Nor does it appear that there was any evidence to connect the samples introduced with the importations in question, or fairly tending to establish substantial identity between them and the importers' goods. We are of opinion that these samples were incapable of raising any reasonable presumption or inference as to whether the goods were properly classified, and that their admission tended to mislead the jury. And if there were some evidence of resemblance, still we think as the record stands the proof came within the rule laid down by Mr. Justice Stephens: "A fact which renders the existence or non-existence of any fact in issue probable by reason of its general resemblance thereto, and not by reason of its being connected therewith, is deemed not to be relevant to such fact. art. 10.

Dig. Ev.

Judgment reversed and cause remanded with a direction to grant a new trial.

Statement of the Case.

COLVIN v. JACKSONVILLE.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF FLORIDA.

46

Where an

Maynard v. Hecht, 151 U. S. 324, affirmed to the point that, appeal or writ of error is taken from a District or a Circuit Court in which the jurisdiction of the court alone is in issue, a certificate from the court below of the question of jurisdiction to be decided is an absolute prerequisite for the exercise of jurisdiction here; and if it be wanting this court cannot take jurisdiction."

ON May 3, 1894, John II. Colvin, describing himself as a citizen of the State of Illinois, filed a bill of complaint in the Circuit Court of the United States for the Northern District of Florida, against the city of Jacksonville, a municipal corporation of the State of Florida, and one D. U. Fletcher, mayor of said city, wherein, alleging that he was the owner of property, real and personal, to the amount of $50,000 within said. city and subject to municipal taxation, he prayed that the defendants should be restrained from issuing and disposing of bonds of the city to the amount of one million of dollars. The grounds of relief stated in the bill were that, after the qualified electors approved the issue of the bonds payable in lawful money, the city council, by ordinance, provided that it should be payable in gold coin; and that the law under which the question of issuing the bonds had been submitted to the electors was illegal and void, because repugnant to the Constitution of the United States. The bill was subsequently amended and an answer was filed, denying that the complainant was a citizen of the State of Illinois and that he had taxable property in the city of Jacksonville to the amount of $50,000.

There was a motion for an injunction and the appointment of a receiver, and on the 3d day of December, 1894, the court denied the motion for an injunction; and thereupon the com

Opinion of the Court.

plainant filed a motion and asked leave to further amend his bill by joining as parties complainant the names of other owners of property assessable by the city, so that the joint liability of such owners and the complainant would exceed $2000 for taxes, and thus remove the objection to the jurisdiction of the court that the amount involved in dispute did not exceed the sum of $2000.

On December 4, 1894, the court denied leave to amend the bill, and made a final decree dismissing the bill for want of jurisdiction. Thereupon the complainant prayed for an appeal to the Supreme Court, which was allowed by the District Judge.

Mr. II. Bisbee for appellant.

Mr. John C. Cooper for appellees. Mr. A. W. Cockrell filed a brief for same.

MR. JUSTICE SHIRAS, after stating the case, delivered the opinion of the court.

It is claimed on behalf of the appellant that the appeal may be sustained in this case because it is one in which the question of the jurisdiction of the court below is in issue, and thus within section five of the judiciary act of March 3, 1891.

But that section provides that "in such case the question of jurisdiction alone shall be certified to the Supreme Court from the court below for decision," and this record does not disclose any such certificate.

Accordingly no course is left open to this court but to dismiss the appeal for want of jurisdiction. Any discussion of this question of practice is rendered unnecessary by the full treatment it received in the recent case of Maynard v. Hecht, 151 U. S. 324, wherein it was held that in the instance of an appeal upon the question of jurisdiction under the fifth section of the act, a certificate by the Circuit Court presenting such question for the determination of this court is explicitly and in terms required in order to invoke the exercise by this court of its

VOL. CLVII-24